Citation Nr: 21040788 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 18-19 278 DATE: July 7, 2021 REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1961 to October 1963 and from June 1964 to August 1966. He died in November 2018; his surviving spouse has been properly substituted as the appellant in this case. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the appellant testified at a Board hearing before the undersigned Veterans Law Judge; a transcript is in the record. In March 2020, this appeal was remanded for additional development. Unfortunately, these issues must be remanded again. As an initial matter, the medical evidence associated with the record appears to be incomplete. A March 2013 VA treatment record is the earliest VA treatment record in the file; however, that entry relates to a "follow-up," indicating earlier VA treatment. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issues on appeal. Additionally, the private treatment records obtained thus far name additional medical providers whose records have not been requested, specifically Dr. U.M., Dr. S.A., Dr. Bean, and records from St. Elizabeth. As private treatment records are likely to contain pertinent information related to this claim, they should be obtained. Accordingly, a remand is required to allow VA to obtain these records. 1. Entitlement to service connection for a left knee disability is remanded. 2. Entitlement to service connection for a right knee disability is remanded. 3. Entitlement to service connection for a neck disability is remanded. The June 2020 VA opinion provider determined that the Veteran's bilateral knee and neck disabilities were less likely related to service based on no documentation of any such injuries or of any fall in his service treatment records (STRs). The Board finds these opinions inadequate as they rely on the absence of treatment records without consideration of the Veteran's and appellant's competent reports. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's STRs to provide a negative opinion). Specifically, the Veteran reported that he was knocked down by an aircraft and injured his knees, back, and neck. The appellant testified that she was married to the Veteran since 1968, two years post-service, and that he experienced knee pain at that time, which progressively worsened. Accordingly, remand to obtain new VA opinions regarding these issues is necessary. Additionally, with respect to the claim of service connection for right and left knee disabilities, the June 2020 VA opinion provider suggested that the Veteran's right knee instability was due to his diabetes with left extremity diabetic neuropathy. When the Veteran first filed his claim of service connection for a left knee disability, he claimed it as secondary to diabetes mellitus. The RO is currently conducting a special review of the Veteran's claim folder to determine whether he was exposed to herbicide agents during his Vietnam service, which may ultimately impact whether service connection may be granted for diabetes and diabetic neuropathy, and potentially impact the claim of service connection for right and left knee disabilities. Accordingly, the Board will defer adjudication on these matters until said development is complete. 4. Entitlement to service connection for a back disability is remanded. The Veteran's August 1961 enlistment report of medical examination noted scoliosis of the lumbar spine with curvature to right of mild to moderate degree that was not considered disabling. His June 1964 reenlistment report of medical examination did not note scoliosis. However, a week later, an x-ray of the Veteran's lungs was taken, and the June 1964 STR noted an extensive scoliotic curve to the thoracic spine with a convexity to the left side. Scoliosis of the thoracic spine was not noted on his service enlistment or reenlistment examinations. The Veteran stated that he injured his back in service after being knocked down by an aircraft. He had continual back pain since service. In a November 2017 statement, he reported that he would often be running and hit his head on objects on the ship due to his height. He believed that these incidents also caused his neck and back disabilities. The appellant testified that she was married to the Veteran since 1968, two years post-service, and that he experienced back pain at that time, which progressively worsened. The matters are REMANDED for the following action: 1. Ask the appellant to identify the provider(s) of all evaluations and treatment the Veteran received for the disabilities on appeal since his discharge from service (records of which are not already associated with the claim file or established to be unavailable), and to provide all releases necessary for VA to obtain the complete clinical records of all such treatment or evaluation. She should also be requested to specifically identify when the disabilities on appeal were first diagnosed or addressed in a medical setting and the diagnosing/addressing physician and/or facility. With her cooperation (by providing releases), the AOJ should obtain for the record complete clinical records of all such evaluations and treatment. If any private records identified are not received pursuant to the AOJ's request, the appellant should be so notified and advised that ultimately it is her responsibility to ensure that private records are received. 2. Obtain any outstanding VA treatment records and associate them with the electronic claim file. Specifically, obtain all VA records prior to March 2013 from all VA facilities, to include in Beaumont and Houston, Texas. 3. After the development in #1-2 are completed, obtain an etiology opinion to determine the nature and likely cause of any knee and neck disability(ies). The opinion provider should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the opinion provider should provide an opinion with detailed rationale that responds to the following: (a) Please identify, by diagnosis, all neck and knee disabilities reflected in the record at any time during the appeal period (since November 2017). (b) For every diagnosed disability, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's active duty service? As appropriate, the Veteran's STRs and his statements that his neck and knees have hurt since service should be discussed. His report of often be running and hitting his head on objects on the ship due to his height should also be discussed. The opinion provider should also discuss the appellant's statements that she has known the Veteran since November 1968 and he had neck and knee pain since that time. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the matter and may also result in a clarification being requested.) 4. After the development in #1-2 are completed, obtain an etiology opinion to determine the nature and likely cause of any back disability(ies). The opinion provider should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the opinion provider should provide an opinion with detailed rationale that responds to the following: (a) Please identify, by diagnosis, all spine disabilities reflected in the record at any time during the appeal period (since November 2017). (b) For all disabilities diagnosed, the opinion provider is asked to provide an opinion and explanation for whether such disability is a congenital defect or congenital disease. (Congenital defects are static in nature and incapable of improvement or deterioration, whereas congenital diseases are capable of such progression. See O'Bryan v. McDonald, 771 F.3d 1376, 1381 (Fed. Cir. 2014)). (c) For every disability that is a congenital defect, is it at least as likely as not (50% or greater probability) that such disability was aggravated by a superimposed injury or disease during the Veteran's service that resulted in additional disability apart from the defect? (d) For every disability that is a congenital disease, is it at least as likely as not (50% or greater probability) that such disability was aggravated by the Veteran's active duty service? (e) For every disability that is neither a congenital defect nor a congenital disease, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's active duty service? As appropriate, the Veteran's STRs and his statements that his back has hurt since service should be discussed, as well as the findings of lumbar scoliosis at service enlistment and thoracic scoliosis during service. His report of often running and hitting his head on objects on the ship due to his height should also be discussed. The opinion provider should also discuss the appellant's statements that she has known the Veteran since November 1968 and he had back pain since that time. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the matter and may also result in a clarification being requested.) 5. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Matta, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.